Conditions of Use

Last Updated June 2016

This website is operated by Once Upon A Child, a division of Winmark Corporation (“we,” “us,” “our,” “Company,” or “Winmark”). The following Conditions of Use (together with any documents referred to in them) apply to your use of our website at www.onceuponachild.com (the “Site”), any of our franchised locations’ websites, and any information we may access through social media platforms such as Facebook (collectively, our “System”).

Please read these Conditions of Use carefully before using the System. Your use of the System means that you accept and agree to these Conditions of Use. If you do not agree to these Conditions of Use or our Privacy Policy, do not use or access the System.

We may at any time revise these Conditions of Use by updating this posting. You are bound by any such revisions and should therefore periodically visit this page to review the then current Conditions of Use to which you are bound.

Disclaimer of Warranties

THE MATERIALS THROUGH THE SYSTEM ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WINMARK DOES NOT WARRANT THAT THE FUNCTIONS OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SYSTEM OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WINMARK DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIALS OR INFORMATION ON THE SYSTEM IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

YOU UNDERSTAND AND AGREE THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SYSTEM OR ANY THIRD PARTY WEBSITE IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM FOR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL.

Winmark disclaims any responsibility for the content of any third party materials provided through or on the Site or System. Winmark desires to respect all copyrights and to respond accordingly when notified of the infringement of those rights. See the Copyright Infringement section below for information on submitting notification to us pursuant to the Digital Millennium Copyright Act.

COPYRIGHT

Permission is granted to display and navigate around this website with a computer using HTML browser software, solely for personal, non-commercial use. Any commercial or public use of this website or any portion hereof is strictly prohibited.

All materials included as part of the System, including, without limitation, text, photographs, images, graphics, illustrations, logos, button icons, audio clips, video clips, software, and other content, and the compilation, collection, arrangement, and assembly thereof (including the look and feel of this site), is our property or the property of our Franchisees and is protected by copyright and other laws that protect intellectual property and proprietary rights. Such materials may be used as a resource for purchasing the products offered through the System. Any other use of such materials, including any copying, reproduction, modification, sale, distribution, transmission, republication, downloading, display, posting, performance, or other exploitation thereof by any means or medium without the prior written permission of Winmark is strictly prohibited. In the event of any permitted use of such materials, including, without limitation, any copying, reproduction, distribution, republication, downloading, or display thereof, you will make no changes in or deletion of author attribution, trademark legend, or copyright notice. No right, title, or interest in any such materials will be granted or transferred to you as a result of any permitted use of such materials.

All trademarks, service marks, trade names, logos, and icons used on the System are proprietary to Winmark. Nothing contained on the System should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark or service mark displayed on this website without the written permission of Winmark or such third party that may own the trademarks or service marks displayed on the System. Your use of the trademarks or service marks displayed on the System, or any other content on the System, except as provided herein, is strictly prohibited.

We are very protective of our Once Upon A Child® trademark and other trademarks and service marks owned by Winmark. If they have not been registered with the United States Patent and Trademark Office, then we have applications pending. All use of these marks must be with our permission. We will file appropriate legal actions to enjoin the unauthorized use of these marks. Under the law, we would be entitled to collect your profits, our actual damages and, perhaps, even our attorneys’ fees.

Copyright INFRINGEMENT

We prohibit the submission of any copyrighted material without the user first obtaining the prior written consent of the copyright owner. In particular, if you are a copyright owner or an agent thereof and believe that any content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works on the System;iii. Identification of the material on the System that is claimed to be infringing or the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;iv. Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an email address;v. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; andvi. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Our designated Copyright Agent to receive notifications of claimed infringement is Tamara L. Harmon who can be reached at (763) 520-8500. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to customer service at (800) 433-2540. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.

FRANCHISEES

Our site acts as the venue to bring Once Upon A Child® franchisees ("Franchisees") and buyers of goods together. Winmark is not involved in the actual transaction between such parties. As a result, we have no control over the quality, safety or legality of the items advertised, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to buy items.

Because we are not involved in the actual transactions between buyers and Franchisees, in the event that you have a dispute with any Franchisee, you release Winmark Corporation (and our officers, directors, agents, subsidiaries and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.

Limitation of Liability

NEITHER WINMARK NOR ANY PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SYSTEM SHALL BE LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SYSTEM, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE BY ACT OR OMISSION, EVEN IF WINMARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUCH LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE SYSTEM OR THIRD PARTY WEBSITES. SUCH LIMITATION SHALL APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL WINMARK'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION EXCEED THE AMOUNT PAID BY YOU TO WINMARK FOR PRODUCTS SOLD OR SERVICES RENDERED. WINMARK ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THE SYSTEM OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO, OR AUDIO FROM THE SYSTEM.

You assume total responsibility and risk for your use of the System and any third party website accessed through the System. Your sole remedy for dissatisfaction with the System or any products or services offered through the System or any third party website accessed through the System is to stop using the System or such products or services.

Jurisdictional Issues

The System is controlled and operated by Winmark from its offices within the State of Minnesota, United States of America. Although the System is accessible worldwide, not all products or services discussed or referenced herein are available to all persons or in all geographic locations. Winmark makes no representation that materials on the System are appropriate or available for use in other locations. Those who choose to access the System from other locations do so on their own initiative and are responsible for compliance with local laws.

Links to Other Websites and Connecting through Social Media

The System may contain hyperlinks to websites operated by third parties. We do not control such websites and will not be responsible for their content or for any breach of contract or any intentional or negligent action on the part of such third parties, which results in any loss, damage, delay or injury to you or your companions. Inclusion of any linked website does not imply or constitute approval or endorsement of the linked website by us. If you decide to leave the System to access these third-party sites, you do so at your own risk. All rules, policies (including privacy policies) and operating procedures of websites operated by third parties will apply to you while on such sites. We are not responsible for information provided by you to third parties.

Electronic Communications

Visiting the Site, using the System or sending emails to us constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the website, satisfy any legal requirement that such communications be in writing. To opt out of receiving marketing emails from us follow the “unsubscribe” link on the email to change your preferences.

Any communications or material you transmit to the System by electronic mail or otherwise, including data, questions, comments, or suggestions, will be treated as nonconfidential and nonproprietary and will become the property of Winmark or its affiliates. Such communications or material shall be used for any purpose including, but not limited to, reproduction, disclosure, transmission, publication, broadcast, and posting. Furthermore, Winmark is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to the System for any purpose whatsoever including, but not limited to, developing and marketing products using such information.

Indemnity and Release

By using the System you are hereby agreeing to release Winmark and its franchisees subsidiaries, affiliates, officers, directors and employees from any and all claims, demands, debts, obligations, damages (actual or consequential), costs and expenses of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, that you may have against them arising out of or in any way related to such disputes and/or to the products and services, including those arising from your use of or inability to use the System or your violation of these Conditions of Use.

Force Majure

Under no circumstances shall Winmark be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, internet failures, computer equipment failures, telecommunications equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, flood, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, nonperformance of third parties, or loss or fluctuations in heat, light or air conditioning.

Choice of Law and Forum

These terms and conditions of use shall be governed by and construed in accordance with the laws of the State of Minnesota, United States of America, excluding its conflicts of law rules. You expressly agree that the exclusive jurisdiction for any claim or action arising out of or relating to these terms and conditions of use of the System shall be filed only in the state or federal courts located in the State of Minnesota, and you further agree and submit to the exercise of personal jurisdiction of such courts for the purposes of litigating such claim or action.

Severability and Integration

Unless otherwise specified herein, this Agreement constitutes the entire agreement between you and Winmark with respect to the System and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and Winmark with respect to the System. If any part of these terms and conditions of use is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties and the remaining portion shall remain in full force and effect.

Termination

You agree that Winmark, in its sole discretion, may terminate your password (if any) or use of the System, for any reason, including, without limitation, if Winmark believes that you have violated the Conditions of Use. Winmark may at any time without notice discontinue the System or any part of it. You agree that any termination of your access to the System may be effected without prior notice. Further, you agree that Winmark will not be liable to you or any third party for any termination of your access to this website.

Trademark Info

Once Upon A Child® is a registered trademark of Winmark Corporation based in Minneapolis, MN.
Any unauthorized use of this trademark by others is subject to action under federal and state trademark laws.
Other brand names are trademarked or registered by their respective companies. Each Once Upon A Child® store is independently owned and operated.